Opinion Forum

Lal Babu Yadav

Debate on State Structure in Nepal: Challenges and Opportunities

A state has the monopoly in power and taxation along with public allegiance and international recognition to government. If the state is autonomous of its internal influential pressure group and sovereign externally, then only the democracy can work for the wellbeing of the people. The structure of democracy, governance and civil society is based state management. In this context, the constitution will play a mediating role between state and society and also provides a collective vision for the common future.

The state restructuring committee of the Constituent Assembly (CA), in its preliminary draft, has proposed a parliamentarian and mixed system. The committee comprising of 45 members has proposed for electoral system, executive, legislature and their jurisdiction and responsibilities, relationship among the organs of state, fundamental elements for the good governance, rule of law and separation of power. The committee which has received 57,200 recommendations from across the country has also included the comparative study of other countries in its report. The same committee has also proposed for geographical situation, state system, local government and their election system. The committee had discussed with the senior leaders of various political parties prior to the submission of the report however it could not reach the consensus on issues of the structure of federal system, the relationship between the federal system and state government, their electoral system and entire political system. But the committee has unanimously proposed the nature of local government and local electoral system, good governance and formation of state service.

First Proposal: Executive Presidential System
The committee has prepared its preliminary report for political system, structure of state and electoral system among others. Out of 39 members, 18 members of the committee had voted for this system. The characteristics of the proposal are:
1. President will be the head of the state and head of the government simultaneously in federal government system.
2. President will be elected on the basis of adult franchise. President will be responsible towards the parliament and the political party through which s/he is elected.
3. The tenure will be for five years and cannot be elected more than twice in the post
4. The poll candidate who gets majority of valid votes in presidential election in which the whole country will be counted as a single constituency will be elected.
5. If a candidate fails to get majority vote in an election, the second phase of election will be held between the two candidates getting maximum votes.
6. The second phase of election will be held within 15 days after the commencement of first phase of election.

The rights and duty of Executive President
1. To form the Council of Ministers on the basis of inclusive and proportional representation, division of work among the ministers and issues related to the diplomatic work including receiving the letter of credence from diplomatic representatives
2. Declaring state of emergency, declaring war and peace and mobilizing army
3. Presenting policy, planning, program and budget to legislature
4. Issuing ordinance
5. All the executive rights of the state will be vested upon the President which s/he will use with the support of the Council of Ministers
The legislature recommends and approves the budget and also recommends for the appointment of ambassadors and chief justice/SC justices. Similarly, the legislature also recommends and approves agreements and treaties. While proposing the name of the running mate, the presidential candidate must propose the name different from own caste, region and gender.

Removal of president from the post
1. If the President dies
2. If s/he resigns in writing from the post.
3. If the proposal of removing the President made by one fourth of the members of the legislature is passed by two third of the majority
4. If the parliament passes the proposal of removing the President, carrying signatures of 10% voters of each territory, presented to the Election Commission.

The structure of Council of Ministers
1. Forming of Council of Ministers proportionate to the numbers of seat received by the parties representing the legislature maintained by the president.
2. Not more than 10% of total members from legislative body in Council of Ministers

Second Proposal: Parliamentarian System
1. Constitutional president will be the head of the state and will be symbol of unity.
2. The members of federal legislature and state legislature can cast vote in presidential election.
3. The tenure of the president will be for five years.

Council of Ministers
1. The executive rights of the state will be vested on president and Council of Ministers. The President will appoint the majority leader of lower house as the Prime Minister of federal legislature. If any party cannot get clear majority, the leader getting support of two or more than two parties will be appointed as the prime minister.
2. If both processes cannot be performed, then the President will appoint the leader of the political party which has the highest number of seats as a Prime Minister but the prime minister appointed through this process must get a vote of confidence from lower house of the parliament within 30 days from the day of appointment.
3. If the Prime Minister could not get a vote of confidence from lower house of federal legislature within the stipulated time, the President will dissolve the parliament and call for another election to get fresh verdict of the people.
4. President will appoint one deputy prime minister and up to 25 ministers, state ministers or assistant ministers based on the principle of inclusion on the recommendation of the prime minister. Prime minister and ministers will be equally responsible towards the federal legislature.

Removal of Council of Ministers and Prime Minister from the post
1. The Prime Minister can be removed from the post if the vote of no confidence proposed by one fourth members of the lower house of federal legislature is passed by simple house majority.
2. Vote of no confidence cannot be motioned against the government until one year from its formation. If a political party could not get majority to form a government then two or more other political parties can form the government. But, the Prime Minister must prove a majority within three days and if s/he could not get the majority in parliament, the president can relieve Prime Minister from the post and call for the election within six months.

Third Proposal
1. One President as a head of the state and head of the government. Lower house of the federal legislature can choose the president from among themselves with two third of the votes but the presidential candidate must be a lower house member.
2. If a poll candidate could not get two third of the majority in first phase of the election then second phase will be conducted between two poll candidates receiving maximum votes.
3. The president will form the council of ministers including the representatives from political parties elected in lower house of federal legislature but the political party not getting at least 3% votes out of the total vote cast would not be in the council of ministers.
4. While forming the council of ministers, the number should not exceed a total of 15% of the members from lower house.

Presidential Government
· Executive power constitutionally independent of legislature and less accountable to the legislature for the actions as in the US, Mexico, Nigeria, Switzerland and Brazil.

Salient features of the Presidential System of Government
1. The chief executive (President) has a full authority of constitutional rights and is not titular.
2. He is neither dependent nor accountable to legislature.
3. Full separation of power among all three bodies of the state.
4. Executive cannot dissolve the legislature.
5. President is the representative elected by the people and his tenure is as stated in the constitution.
The president cannot be removed as in the parliamentarian provision but only by 2/3rd majority of the parliament in a case of impeachment.

Merits of Presidential Governance System
1. This system is applicable to a country having different aspirations and cultures.
2. Legislative members are less bound by party’s discipline.
3. Representative characteristics are maintained without being accounted.
4. Due to the fix term of the president and the provision of re-election, it has stability and strategic continuity.
5. The ministers can give more time to their departmental issues as they don’t have to be responsible in legislature.
6. More chances of having stability because the government does not need to prove its majority time and again and legislature cannot be dissolved by normal majority.

Demerits
1. In this system, there is a higer risk of tyranny rather than in the parliamentarian system.
2. Having various committees in legislature is another demerit of this system.
3. The system can be inflexible as the executive president has to follow constitutional provisions.
4. This is seemingly autocratic, unaccountable and risky because in this system president has been given some discretionary power despite the constitutional limitations.
5. There is no one above the President to control the national affairs.

Parliamentarian Government
The governance using the actual rights by the council of ministers under the control of parliament is the parliamentarian system. This system is popular among the countries like Nepal, India, and the UK.

This article first appeared in July 2014 issue of INFORMAL and is available at the link below.
http://www.insec.org.np/new/pics/publication/1407234555.pdf